Smith v. Eastern Building & Loan Ass'n , 116 N.C. 102 ( 1895 )

It is a well settled legal principle, repeatedly recognized by this Court, that a recovery cannot be had upon proof without corresponding allegations. McLaurin v. Cronly, 90 N.C. 50; Abernathyv. Seagle, 98 N.C. 553; Greer v. Herren, 99 N.C. 492. The plaintiff in the progress of the trial abandoned his second cause of action entirely, as well as that founded on the breach of contract alleged in (110) sections 5 and 6, and the repudiation of it declared upon in the 11th section of his first cause of action, while the defendant conceded the justice of the demand embodied in sections 7 and 8, but pleaded and offered evidence to prove payment in full of that claim. After erasing all that is no longer insisted upon, there is no other allegation upon which a recovery can be asked, unless it be in the general averment contained in the third section of the complaint, construed in connection with the contract, a copy of which was filed as an exhibit. After abandoning the claims of two dollars per share on paid-up stock and of 95 per cent on membership fees, and after his demand of 1 1/2 per cent on monthly installments paid upon stock had been admitted, the plaintiff was allowed to testify, the defendant objecting, that "from December, 1891, to December, 1892," he had "spent $5,000 out of his own pocket in and about work for the association."

Was he entitled to recover back from the defendant any part or all the money expended, as designated by him, in the face of the fact that the two demands abandoned and that conceded to him in the answer, were by express stipulations of the contract to be paid, if at all, in consideration of duties performed, or caused to be performed by said second party, at his own cost or expense? If it were possible to maintain an action founded upon the alleged expenditure in the conduct of the business, because in furtherance of the purposes in contemplation of the parties in entering into the written agreement, the defendant would be entitled to a more definite understanding of what he proposed to prove than can be gathered from the portions of the complaint left intact, or all of it probably with the exhibit added.

But the contract is one involving mutual considerations, — that on the part of the plaintiff to do certain things at his own expense, and (111) that on the part of the defendant to pay him at a given rate for certain services if performed. Now that plaintiff, by abandoning his grounds of action, has admitted his inability to prove that he performed two kinds of service, for which he was to receive payment, and the defendant has conceded his remaining claim, it would be manifestly wrong to allow him to recover in consideration of working at his own expense for the only service rendered, and then to permit him to recover back the consideration on his part. The case bears no analogy to that class of cases where a plaintiff is held to have declared in his complaint both upon a special contract and a quantum meruit or a quantum valebat (though often inartificially drawn) and afterwards directs his proof to the second ground of action only. Here the plaintiff declares upon the stipulations of the defendant, makes good his claim to have performed one of them, and then demands under a general count the repayment of the consideration in money paid by him in the performance of what he had engaged in the written instrument to do.

A plaintiff is not allowed to declare on one cause of action and prove another, because if such variances are tolerated, however diligent the defendant may be, he cannot so prepare his defense as to meet surprises.Willis v. Branch, 94 N.C. 142; Conly v. R. R., 109 N.C. 692. For the reasons given we think there was

No error.

Cited: Roberson v. Morgan, 118 N.C. 994; Christmas v. Haywood,119 N.C. 134; Harris v. Quarry Co., 131 N.C. 555; Foster v. Davis,175 N.C. 544.

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